Complainant

Respondent

Parties

Brian  Hopkins

Hakim Group

Complainant

Respondent

Representatives

Self-Represented

Mr C Clarke, HR Consultant and Company Managers

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00070886-001

16/04/2025

The issue in contention concerns the alleged Unfair Dismissal of an Optical Laboratory Technician by an Optician Chain.

The employment began on the 2nd March 2020 and ended on the 4th February 2025.

The rate of pay was stated by the Complainant to have been €22,860 per annum for a 32 hour week.

The Complainant gave an extensive Oral Submission in support of the details on his complaint form.

The employment had begun with the original Owner, Mr M , in March 2020. All had gone well with no issues arising. A new owner, the Hakim Group,  had taken over the business in late 2024. The culture of the new Owner was , the Complainant very forcefully alleged, personally oppressive and excessively sales focused with little regard for Patient or Staff welfare. New policies were introduced (especially regarding sales of Spectacle frames) and a new IT Ordering system was installed . This was very UK NHS focused and not really suitable for a RoI/ Irish HSE Systems operation.

The Complainant struggled with the new IT System and admitted to having made mistakes in orders as he alleged did most of the staff including Managers. However, he alleged that his mistakes/errors were excessively documented and used to “build a case against him”. A Disciplinary meeting was scheduled for the 15th January which was postponed until the 24th January eventually taking place on the 4th February 2025. The Complainant alleged that the Disciplinary meetings were a “fabrication”.

There was much discussion regarding an elderly Lady who was required by the new Procedures to leave her Glasses in the Practice and then had a severe physical fall requiring hospitalisation.

In cross examination, which got quite heated, he denied making remarks that he was going to physically damage, “Trash” the Practice. The Complainant maintained that any recording of his conversations had taken place without his knowledge or agreement and had to be ruled completely inadmissible by the Adjudication Officer. The Adjudication Officer indicated that he would treat them as low value hearsay evidence

Any use of the Photocopiers/ IT printer for his own private work was a practice that the previous owner had always allowed. The Complainant had always supplied his own copier paper.

Any errors he made were simple and due to the new Operating IT System. All staff had made mistakes due to being unfamiliar with the System.

In summary the new Owners ran the business like a “Cult” and he was never going to fit in to their way of doing business. He was of a long standing in the Optical business and he was never going to sacrifice his professional integrity to endanger Patients or to engage in wilful fraud of the HSE or Customers , despite the ”farcical” Respondent claims.

The Respondent was represented by Mr Clarke supported by a number of Managers. A detailed written submission was provided. In essence the case was threefold. Firstly, the Complainant was a physical threat to the business with his “Trash the Shop” remarks to colleagues. Secondly ,his approach to meetings especially the Disciplinary process was aggressive and completely unreasonable. Thirdly, he failed to appreciate or explain the very high error rate he had been responsible for in the Ordering system. Furthermore, his us of the Company IT System to produce and print off quite inflammatory Political documents/Public Notices  was in breach of any reasonable employer IT Policy. Some copies of the notices were presented in evidence.

The situation with the Elderly Lady was  taken out of context and was not the major Health and Safety issue he was projecting it to be. This issue ,characterised as a Grievance, had been fully investigated by an Independent Manager, Ms McK, who did not substantiate the Complainant’s allegations. The Complainant had declined to participate in Ms McK Grievance /Investigation. Her quite detailed and professional  report was presented in evidence.

In summary, the Respondents position was that the Complainant had behaved completely unreasonably in procedural matters, had made physical threats to the Business and Staff and  had displayed  a very serious pattern in Ordering errors in his work in the latter part of 2024. He was completely unapologetic.

Ms G, the Director, had issued a very detailed termination letter on the 10th February 2025 ( 6 detailed A Four pages) . The actions of the Complainant could only be described as Gross Misconduct warranting his immediate Dismissal.

The Respondent pointed out that an Appeal to the Respondent Dismissal decision had been offered to but was never acted upon by the Complainant.

3:1         The Legal Position.

The complaint is covered by the Unfair Dismissals Act,1977 supported by SI.146 of 2000 Statutory Code of Practice on Grievance and Disciplinary Procedures. There is also an extensive body of Legal Precedents.

Section 6 (4) of the Act is particularly relevant

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

In addition Section 14(4) is also crucial

(4) Where an employee is dismissed, the employer shall, if so requested, furnish to the employee within 14 days of the request, particulars in writing of the principal grounds for dismissal, but, in determining for the purposes of this Act whether, in accordance with the provisions of this Act, the dismissal was an unfair dismissal, there may be taken into account any other grounds which, subject to the provisions of this Act and having regard to all the circumstances, are substantial grounds justifying the dismissal.

In this case the essence of the Respondent arguments was based on Section 6 (4) subsections (a) and (b) above and Section 14(4).

Furthermore SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary procedures is also relevant.

 In a Dismissal for Gross Misconduct , as was the case here,  the Legal precedent case of Frizell v New Ross Credit Union is also particularly noteworthy.

In Frizelle v New Ross Credit Union Ltd, [1997]IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

There is also a generally well accepted practice that Parties to a case will abide by / follow reasonable procedures in relation to meetings/investigations and other related matters. This particularly applies to following all stages ,including Appeals, in an Disciplinary process.

However, legal matters not withstanding all cases rest on their own evidence and these will be examined below.

3:2        Consideration of Oral and Written evidence presented.

3:2(1)       Procedural issues

The Adjudicator reviewed the procedural steps taken by the Respondent Employer and the supporting correspondence.  The invitation from Manager ,Ms G, to a formal Disciplinary meeting ( letter of the 9th January 2025) was detailed and set out clearly the concerns of the Employer. However, in keeping with SI 146 of 2000 Code of Practice it might have been a better Respondent step to have had a separate Investigation Meeting prior to moving to a Disciplinary meeting, if this was indeed required ,after consideration of the Investigation.

The Complainant refused to attend the first two scheduled dates in January 2025. In his Oral  Testimony he largely dismissed these meetings as “pre-Determined” meetings where his view point or explanations would carry no weight. The minutes from the eventual meeting of the 4th February , while provided to the Complainant , relay a hotly contested exchange with many heated allegations levelled at the Respondent. There clearly was no effort made to give any reasonable explanation for his behaviours of concern to the Respondent. There was a serious allegation made by the Complainant of the Respondent acting in a “Cult” like fashion with little regard for Patient Safety.

It has to be noted here that Complainant behaviours , even if somewhat overly aggressive at a Disciplinary Hearing , are not in themselves grounds for a dismissal. It is what happens before the Hearing and during the Employment that are crucial.

However all things considered the Respondent position was based on supplied evidence set out in detailed correspondence prior to the Disciplinary meeting.  The fact that the Complainant, quite clearly, did not engage in a normal fashion in a disciplinary processes, was not helpful to explaining his case or offering reasonable explanations.

The conclusion has to be that the Respondent acted ,in general within a proper procedural process. The issue of the same Manager, Ms G, being involved throughout was again not ideal. Ms G issued the Investigation / Disciplinary invites and wrote the Final dismissal letter. It would have been better to have had separate Managers at each stage.

None the less the final Dismissal letter of the 10th February was very comprehensive, running to some 6 A4 pages. The issue had clearly been carefully considered.

Point 6(4) of the Unfair Dismissal Act – “Capability and Competence” as reasons for Dismissal would seem to have been satisfied here.

The issues of the alleged “Trash the Business” were to a certain extent “hearsay” but the often quite heated Oral testimony of the Complainant at the WRC hearing was certainly not helpful to his cause in this regard.

The printing of what were essentially Political flyers on office systems may have arisen from a loose arrangement with the earlier employer that had in some way ,in the Complainant’s view , carried over to the new Employer. However, from the evidence  presented it was clear that no “reasonable” employer would have agreed to this practice , if consulted in advance. It was without doubt a breach of Company rules.

Section 6 (4) (b) -Conduct would seem to have been satisfied here as a legitimate reason for dismissal.

However, also referring to Section 14

 “any other grounds which, subject to the provisions of this Act and having regard to all the circumstances, are substantial grounds justifying the dismissal”   

It was clear that the Complainant had very serious issues with the new Owners prior to his dismissal  and did not seem open to a reasonable approach, if his oral testimony, at the Hearing was to be taken into account.

It has also to be noted that the Grievance Investigation, by Ms McK, which the Complainant refused to part in, was comprehensive and did not support his allegations.

3:3        Adjudication Conclusion

On the basis of probabilities supported by  a complete review of all the evidence and a consideration of the Legal background the case for an Unfair  Dismissal has not been properly made out.

This in not to say that here were not weaknesses in the Respondent case on Procedural grounds but the very aggressive approach of the Complainant and non-involvement in the Grievance Investigation process more than cancelled these. In addition, the refusal to participate in any Appeals process was also very unhelpful to his case.

Unfair Dismissal